COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia
RICHARD ANTHONY SMOOT
OPINION BY
v. Record No. 2390-00-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
Rex L. Edwards, Jr. (Davies, Barrell, Will,
Lewellyn & Edwards, P.C., on brief), for
appellant.
Jennifer R. Franklin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.
Richard Anthony Smoot appeals his conviction for possession
of marijuana while a prisoner, in violation of Code § 53.1-203.
Smoot alleges: (1) the Commonwealth violated the provisions of
the agreed order of discovery and inspection by not timely
disclosing letters written by Smoot; and (2) because of this
untimely disclosure, the trial court erred in overruling Smoot's
motion to dismiss or continue. For the following reasons, we
affirm.
BACKGROUND
Prior to Smoot's trial for possession of marijuana by a
prisoner, the trial court entered an agreed order for discovery
and inspection requiring the Commonwealth to disclose certain
information to the defendant no later than July 14, 2000. The
prosecutor delivered several documents pursuant to the order and
informed Smoot's attorney that his file could be inspected under
his "open file policy."
On September 1, 2000, the Friday before trial, the
prosecutor discovered Sergeant Nelson possessed two inculpatory
letters written by Smoot to fellow inmates. That same day, the
Commonwealth sent defense counsel a supplemental discovery
response with copies of the two letters and another report
attached.
The trial court heard argument on September 5, 2000, the
day before the trial, concerning the "late disclosure" of the
letters. Defense counsel argued the letters were covered by the
discovery order and, as they were not disclosed promptly, the
case should be continued or dismissed. The trial court held
that the letters were not covered by the discovery order and
denied the continuance.
At trial, the Commonwealth attempted to introduce the two
letters during redirect examination of Sergeant Nelson. The
trial court again ruled that disclosure of the letters was not
encompassed by the discovery order, but refused to admit the
letters on the ground that they went beyond the scope of
cross-examination. No further mention of the letters or their
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contents was made. Smoot did not present any evidence in
defense.
The jury found Smoot guilty of possession of marijuana by a
prisoner, in violation of Code § 53.1-203. In accordance with
the jury's verdict, the court sentenced Smoot to serve four
months in jail.
Smoot appeals on the ground that the Commonwealth violated
the discovery order by not timely producing the letters to
defense counsel and that the trial court erred in refusing to
grant the continuance.
ANALYSIS
Rule 3A:11 governing discovery in criminal cases provides
that, upon timely written motion, the accused is entitled to
discover any relevant:
written or recorded statements or
confessions made by the accused, or copies
thereof, or the substance of any oral
statements or confessions made by the
accused to any law enforcement
officer . . . .
(Emphasis added). However, where a discovery order has been
entered in a criminal case, it governs discovery in that case.
Abunaaj v. Commonwealth, 28 Va. App. 47, 53, 502 S.E.2d 135, 138
(1998). The discovery order entered in this case required the
Commonwealth to permit defense counsel to inspect and copy or
photograph any:
written or recorded statement or
confessions, or copies thereof, or the
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substance of any oral statements or
confessions made by the Defendant to any law
enforcement officer . . . .
In short, the order omitted the language from Rule 3A:11
underscored in the above quotation.
The trial court held that the letter was not within the
discovery order because it was not written "to any law
enforcement officer." Smoot contends that this construction of
the discovery order was error and that the Commonwealth was
required to turn over to defense counsel inculpatory letters
Smoot wrote to a fellow inmate. We agree.
"[W]hen construing a lower court's order, a reviewing court
should give deference to the interpretation adopted by the lower
court." Fredericksburg Construction v. J.W. Wyne Excavating,
260 Va. 137, 144, 530 S.E.2d 148, 152 (2000) (citing Rusty's
Welding Service v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255,
260 (1999)). Although trial courts have discretion to interpret
their own orders, that discretion must be exercised reasonably
and not arbitrarily or capriciously. Rusty's Welding Service,
29 Va. App. at 130, 510 S.E. 2d at 261. Furthermore, an order
must be interpreted within its four corners. United States v.
Armour & Co., 402 U.S. 673, 682 (1971).
Applying these principles of law, we find that the trial
court erred in its construction of the discovery order. It is
settled that the language of Rule 3A:11(b)(1)(i) requires the
prosecutor to turn over written and recorded statements by the
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accused whether made to a law enforcement officer or not.
Abunaaj, 28 Va. App. at 52-53 n.1, 502 S.E.2d at 138 n.1; Conway
v. Commonwealth, 12 Va. App. 711, 715, 407 S.E.2d 310, 312
(1991) ("Rule 3A:11 requires the Commonwealth to allow an
accused to inspect and copy or photograph any written or
recorded statements, the existence of which is known to the
attorney for the Commonwealth."); Naulty v. Commonwealth, 2 Va.
App. 523, 528, 346 S.E.2d 540, 543 (1986) (Rule 3A:11 places "no
limitation" on the defendant's right to his own statements).
The discovery order in this case varies from the language of
Rule 3A:11 only in its omission of the limiting phrase "made by
the accused," in the first clause. The trial court infers that
this omission limits the Commonwealth's discovery obligations to
statements made by the defendant to law enforcement officers.
This interpretation necessarily rests on the view that the
defendant purposely deviated from the language of Rule 3A:11 and
deliberately narrowed his rights to discovery when he agreed to
the order. See id. The Commonwealth offered no compelling
reason for the trial court to accept this conclusion. We,
therefore, hold that the trial court abused its discretion in
finding that Smoot intentionally relinquished his entitlement to
discover some of his statements.
In addition, the structure of the challenged sentence in
the order, and the grammatical rules that pertain, do not
support the trial court's interpretation. Generally, phrases
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separated by a comma and the disjunctive "or," are independent.
See, e.g., Ruben v. Secretary of DHHS, 22 Cl. Ct. 264, 266
(1991) (finding that, the word "or" connects two parts of a
sentence, "'but disconnect[s] their meaning'" (quoting G. Curme,
A Grammar of the English Language, Syntax 166 (1986))); Quindlen
v. Prudential Ins. Co., 482 F.2d 876, 878 (5th Cir. 1973)
(noting disjunctive results in alternatives, which must be
treated separately); United States v. Erdos, 474 F.2d 157, 160
(4th Cir. 1973) (finding that limiting phrase in statute is
independent of and does not modify two earlier phrases because
the limiting phrase is separated from the first two by a comma
and the disjunctive "or"); United States v. Riely, 169 F.2d 542,
543 (4th Cir. 1948) (interpreting the use of a comma and the
disjunctive "or" as implying two separate and independent
phrases in a Virginia statute authorizing payment of dividends
by corporation "out of net earnings, or out of its net assets in
excess of its capital"). Accordingly, the phrase, "made by the
Defendant to any law enforcement officer," is independent of and
does not modify the phrase, "[a]ny written or recorded statement
or confessions."
Based on the foregoing, the order required the Commonwealth
to disclose all of the defendant's written and recorded
statements, irrespective of the recipient. Consequently, the
trial court's ruling that Smoot's inculpatory letters written to
his fellow inmates were not encompassed by the order was error.
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However, to constitute reversible error, the Commonwealth's
late disclosure of inculpatory evidence must prejudice the
defendant's case. See Davis v. Commonwealth, 230 Va. 201, 204,
335 S.E.2d 375, 377-78 (1985); Conway, 12 Va. App. at 716, 407
S.E.2d at 312-13 (citation omitted). To show prejudice, the
defendant must demonstrate how timely disclosure would have
changed his trial strategy or affected the outcome of the trial. 1
See Davis, 230 Va. at 204, 335 S.E.2d at 377 (holding that to
demonstrate prejudice from the nondisclosure of inculpatory
evidence, defense counsel must "suggest to the trial court how
their earlier disclosure would have benefited [defendant's]
defense or altered the course of the trial"); Knight v.
Commonwealth, 18 Va. App. 207, 215, 443 S.E.2d 165, 170 (1994)
1
In contrast, the court's failure to remedy the
Commonwealth's untimely disclosure of exculpatory evidence
constitutes reversible error if the defendant demonstrates that
the evidence is "material either to guilt or to punishment."
Brady v. Maryland, 373 U.S. 83, 87 (1963); see United States v.
Bagley, 473 U.S. 667, 678 (1985). The standard for
demonstrating reversible error differs where the evidence is
exculpatory because a defendant's right to exculpatory evidence
invokes his or her right to due process of law, see Brady, 373
U.S. at 87 ("[S]uppression by the prosecution of evidence
favorable to an accused upon request violates due
process . . . ."); Lomax v. Commonwealth, 228 Va. 168, 173, 319
S.E.2d 763, 766 (1984) ("[T]he Commonwealth has a duty to
disclose [exculpatory evidence] in sufficient time to afford an
accused an opportunity to assess and develop the evidence for
trial."); Gilchrist v. Commonwealth, 227 Va. 540, 547, 317
S.E.2d 784, 788 (1984), while the defendant's access to
inculpatory evidence stems only from the Rules of the Supreme
Court. See Rule 3A:11; Walker v. Commonwealth, 258 Va. 54, 63,
515 S.E.2d 565, 570 (1999) (holding that neither due process nor
Brady requires the Commonwealth to disclose inculpatory
evidence).
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(holding that to demonstrate prejudice from the late disclosure
of inculpatory evidence, defendant must "[offer an explanation]
as to how his trial tactics might have been different if [the
evidence] had been disclosed before trial"); Conway, 12 Va. App.
at 716, 407 S.E.2d at 313 (noting that admission of nondisclosed
evidence is reversible upon a showing that nondisclosure
prejudiced defendant's "case" or "defense").
We note that this case does not involve the admission of
inculpatory evidence that was untimely disclosed. See, e.g.,
Davis, 230 Va. at 204, 335 S.E.2d at 277 (undisclosed autopsy
photographs of victim admitted into evidence); Conway, 12 Va.
App. at 716, 407 S.E.2d at 313 (undisclosed tape recording
admitted into evidence); Naulty, 2 Va. App. at 526, 346 S.E.2d
at 542 (videotape of defendant purchasing chemicals used in the
manufacture of PCP admitted into evidence). In such cases, the
admission of the evidence may affect the determination of guilt
or sentencing and prejudice a defendant who is unprepared for
its impact. See Conway, 12 Va. App. at 716, 407 S.E.2d at 313
(finding prejudice where defendant was impeached by the
admission of an undisclosed tape recording showing his testimony
to be false). But see Davis, 230 Va. at 204, 335 S.E.2d at 277
(finding no prejudice because counsel failed to demonstrate how
earlier disclosure of autopsy photographs that were admitted
into evidence would have benefited defense or altered the course
of trial); Naulty, 2 Va. App. at 528-29, 346 S.E.2d at 543
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(finding no prejudice because defendant did not "allege any
specific prejudice suffered as a result of the tape's admission,
nor is any prejudice apparent from the record").
Here, the evidence in question was not admitted into
evidence, nor referenced at trial. The parties have cited no
Virginia cases addressing the issue of prejudice where
inculpatory evidence was untimely disclosed and not admitted
into evidence. However, we hold that the general principles for
demonstrating prejudice due to untimely disclosure of
inculpatory evidence, set forth above, are relevant and govern
our decision. Specifically, we focus on how, if at all, the
untimely disclosure adversely affected Smoot's trial strategy or
defense.
Although Smoot claims he was prejudiced by the late
disclosure of the letters, a close reading of his claims makes
manifest that they do not rise above an articulation of abstract
principles and speculative conclusions that do not prove how
"earlier disclosure would have benefited [his] defense or
altered the course of the trial." Davis, 230 Va. at 204, 335
S.E.2d at 377. Smoot decided not to testify at trial when he
was untimely provided a copy of the letters that could be used
to impeach him. He alleges that earlier disclosure of the
letters would have helped him ascertain the nature and
authenticity of the letters, determine the circumstances of
their preparation and permitted him to speak to the recipient
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and investigate whether the recipient worked as a law
enforcement informant, all of which inquiries were necessary, he
claims, to "help [him] to decide whether or not to testify."
Smoot's argument misapprehends his burden of proof on this
issue. Notably, he fails to state how earlier, timely
disclosure of the inculpatory evidence would have sustained his
intended trial strategy to present testimony on his behalf, or
otherwise altered his trial tactics. See Davis, 230 Va. at 204,
335 S.E.2d at 377 (holding that defendant must articulate "how
. . . earlier disclosure [of inculpatory evidence] would have
benefited [his] defense or altered the course of the trial" to
demonstrate prejudice from the untimely disclosure of
inculpatory evidence).
In the context of the facts of this case, Smoot's
contention that he needed time to evaluate the authenticity of
the letters and how they were prepared in order to determine the
advisability of testifying in his defense is disingenuous.
First, because Smoot has never contended he did not author the
letters, his claim appears, at best, to be a "red herring."
Even accepting his position, arguendo, verifying their
authenticity and manner of preparation was a simple matter of
consulting briefly with counsel at trial. Smoot not only had
knowledge of the letters' authenticity and preparation at the
time of trial, he was, and remains, the sole witness who could
testify to those facts. He either wrote the letters or he did
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not. Yet, Smoot has not affirmatively challenged the
authenticity of the letters and fails to explain why a
continuance was necessary to address the point.
Similarly, because Smoot had the opportunity to determine
the letters were authentic and has made no claim that he did not
write them, his contention that he needed time to investigate
the recipient's relationship with the police is unpersuasive.
Smoot thus fails to state the relevance of the recipient's
relationship with the police to his trial strategy, and we can
discern none. In short, Smoot fails to articulate how timely
disclosure and additional "investigation" of the letters and
their recipient would have altered his trial tactics, and we
decline to construct a materially altered strategy on his
behalf. Moreover, we note that, while the disclosure of
evidence in this case was untimely, it nonetheless led to a
change in trial strategy which, in effect, shielded Smoot's
credibility from challenge and inured to his benefit. Any claim
of prejudice, therefore, is belied. Cf. Conway, 12 Va. App. at
716, 407 S.E.2d at 313 (finding prejudice where defendant,
unaware of a tape recording that would show his testimony to be
false, chose to testify and was impeached by the recording).
Because Smoot has not carried his burden of demonstrating
prejudice, we affirm his conviction.
Affirmed.
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Benton, J., concurring, in part, and dissenting, in part.
I agree with the majority opinion's holding that the trial
judge erred in ruling that the letters were not encompassed by
the discovery order. I also agree that the prosecutor's
supplemental discovery response was made in good faith. Despite
those good faith efforts, however, the prosecutor's response was
untimely. When late disclosure of discovery prejudices the right
of an accused to have "sufficient time to investigate and
evaluate the evidence in preparation for trial," and the trial
judge denies the accused's motion for a continuance, the accused
is entitled to a new trial. Lomax v. Commonwealth, 228 Va. 168,
173, 319 S.E.2d 763, 763 (1984).
Smoot was charged with possessing marijuana, which was found
inside two pieces of paper on the floor of a basketball court.
The pieces of paper were found approximately twelve inches from
Smoot's feet and the feet of two other men, all of whom were
sitting behind desks by the basketball court. Smoot entered a
plea of not guilty.
Requesting a continuance, Smoot's attorney informed the
judge that Smoot was incarcerated and that he had not been able
to review the letters with Smoot to determine their authenticity,
the circumstances of their preparation, or the means by which
they came into the prosecutor's possession. He also informed the
judge that he had intended for Smoot to "testify and had
anticipated that it would be without any written admissions."
Smoot's attorney said that, because of his uncertainty about the
circumstances surrounding the letters, he had both "evidentiary"
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and "ethical considerations with regard to whether [he was] in a
position to let . . . Smoot testify or not." I believe that
these representations by Smoot's attorney proffered circumstances
which reasonably established prejudice to Smoot's "right to
explore and develop this evidence." Id. at 173, 319 S.E.2d at
766.
As a consequence of not having the opportunity to
investigate the letters and the circumstances surrounding them,
Smoot's attorney represented to the judge that he had to abandon
his trial strategy and "at the twelfth hour completely revamp the
potential defense." Smoot's attorney had no opportunity to
determine whether the letters were instigated by an agent of the
police, how they came into possession of the police, whether they
could be suppressed, or whether he needed to issue process for
other witnesses to testify. The untimely delivery of the undated
letters caused Smoot's attorney to abandon his previously
considered strategy of having Smoot testify.
Instead of presenting Smoot's planned defense, Smoot did not
testify and presented no witnesses. Obviously, if Smoot had
testified, the prosecutor was prepared to examine him regarding
the letters' contents. Smoot's attorney had no opportunity to
assess how to counter that risk and whether to base Smoot's
defense upon the testimony of other witnesses, who were present
at the basketball court where the marijuana was found.
I would hold that the trial judge committed reversible error
by refusing to grant a continuance. The lack of opportunity to
determine whether proof could be mustered to counter the
prosecutor's intended use of the evidence deprived Smoot of "the
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right 'to call for evidence in his favor,' including 'the right
to prepare for trial . . . and to ascertain the truth.'"
Gilchrist v. Commonwealth, 227 Va. 540, 547, 317 S.E.2d 784, 788
(1984). For these reasons, I would reverse the conviction and
remand for a new trial.
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